Thursday, August 10, 2006

New Torture Law

The folks in the Bush administration have belatedly discovered the meaning of the word ‘prudence’.

A new draft law will protect some US personnel retroactively from legal action, by removing from existing law some tactics used in interrogations by the CIA and others. The draft, an amendment to legislation enacting the Geneva conventions, would remove the Geneva protection against “outrages upon personal dignity”: eg, the wearing of hoods, sexual humiliation, and so on.

The logic is reasonable enough. If something (the law) threatens your agenda, and you have the power to change it, then that’s what you ought to do. A court ruling in late June that guaranteed Geneva Convention protections to prisoners at Guantanamo Bay, thereby confirmed made the use of these tactics there illegal. Given that the practices were entrenched by then, the administration had to protect itself and its people.

This is really just fairly basic political science. According to Hobbes, in the Leviathan, there is no distinction between the law and the sovereign—no distance between the content of law and the will of the government. Constitutional government is supposed to mitigate this, by imposing checks, balances, and so on, not least in this case the power of the Supreme Court to rule the actions of the executive branch illegal.

The effort to legalize certain instances of torture after the fact belongs to an ongoing pattern by Dick Chaney and his aids to cut through limitations on the power of the executive branch (they actually believe that the post-Watergate blocks again Whitehouse abuses of power were a mistake). It probably shouldn’t be surprising that this is going on. If you’re convinced that your right, and enough people appear to disagree with you (and are therefore wrong), then you’d better do what you can to protect your position.

What is worrying is how well it seems to be working. That an unpopular president and his inner circle are willing to short circuit the existing separation of powers to protect themselves probably comes naturally. That they might succeed is cause for alarm.

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